LYNN B. McGARRY, et al., Plaintiffs-Appellants v. JAMES B. HORLACHER, M.D., et al., Defendants-Appellees

C.A. CASE NO. 18901

COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY

2002 Ohio 3161; 2002 Ohio App. LEXIS 3204

June 21, 2002, Rendered

JUDGES: WOLFF, P. J. BROGAN, J. and FAIN, J., concur.

OPINION BY: WOLFF

"V. THE TRIAL COURT ERRED BY NOT PERMITTING THE TESTIMONY OF DR. JOHN BURKE, AN ECONOMIST, ON THE LOSS OF ENJOYMENT, HEDONIC, AND OTHER RELATED ECONOMIC DAMAGES."

 McGarry argues that the trial court erred in excluding the testimony of Dr. John Burke regarding how to assess the "different, unique, and difficult elements" of hedonic damages that she had suffered. In response, Horlacher argues that this issue is moot because the jury found no liability. In light of the fact that we are remanding this case for a new trial, however, we think it would be wise for us to address the propriety of the trial court's ruling. We note that Burke was allowed to testify about McGarry's lost earning capacity and the value of her services as a homemaker.

 Burke attempted to assign a monetary value to a random American woman's qualitative enjoyment of life at McGarry's age. He admitted that, because his calculations were based on a random American, his method would assign the same hedonic damages to a woman who had been sentenced to spend life in prison as to a woman living a normal, healthy life with her family. Burke readily admitted that his views were controversial in his field, that they were "on the frontier of knowledge," and that the application of his methodology to hedonic damages was subject to substantial disagreement within the scientific community. After hearing the proffered testimony, the trial court stated:

"The Court's obligation, obviously, under [Evid.R.] 104 and the Daubert [v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469] case and its progeny are to make a review of the scientific bases for the admissibility of the evidence in question, and the court has done that in this case.

"Daubert suggests that there are some key questions for the Court to resolve to make a determination of admissibility issues. That is, whether the reasoning or methodology employed by the expert has been tested, whether the theory or technique has been subject to peer review and publication, consideration of potential rates of error in existence, and maintenance of standard controlling the techniques or operation, and whether the methods and techniques have gained general acceptance within that particular scientific community.

"The Court is also mindful of the definition of hedonic damages. That is, the inability to perform activities which had given pleasure to this particular plaintiff, which are distinguished from basic losses, which are, disabilities that include the basic mechanical body functions of walking, climbing, feeding oneself and so on. Because that distinction is made in Ohio law and is not made in the calculations or considerations of the expert plus the infirmities that these particular calculations apparently are subject to in the scientific community, the Court feels that it is better advised to sustain the motion and not allow the expert to testify on the hedonic damages issue in this regard.

 "Now, I an aware that *** under Daubert there are areas of science that are shaky but admissible that can be introduced, but I just don't think this is in the shaky but admissible category ***. It may attain that with more study in the near future, but I just don't believe it is there now."

 From the trial court's discussion of Burke's testimony, it is clear that the court considered the proper criteria in evaluating Burke's testimony regarding hedonic damages. The trial court did not abuse its discretion in reaching the conclusion that it did.